Mason v Murray's Charter Coaches and Travel Services Pty Ltd

[1998] FCA 1430

FEDERAL COURT OF AUSTRALIA

LIMITATION OF ACTIONS – extension of limitation period – personal injury – whether NSW or ACT limitation legislation to apply where tort committed in NSW but proceedings commenced in ACT – whether s. 56, Limitation Act 1985 (ACT) to be construed according to the two limb test in McKain v RW Miller and Co (South Australia) Pty Limited – whether second limb of McKain test is satisfied under the substantive law of NSW – whether, in considering the second limb of the McKain test, NSW limitation law should apply to the exclusion of conflicting ACT limitation law - whether ‘procedural’ laws restricting damages under NSW legislation are relevant to the discretion to extend limitation period - whether fair and just to exercise discretion to extend limitation period - whether prejudice to parties sufficient to refuse extension of time – whether delay in commencing proceedings sufficient to refuse extension of time - whether hardship to plaintiff sufficient to allow extension of time - Limitation Act 1985 (ACT), ss. 36(2), 56, 57 - Workers’ Compensation Act 1987 (NSW), s. 151D(2).

Limitation Act 1985 (ACT), ss. 36(2), 56, 57
Workers’ Compensation Act 1987 (NSW), s. 151D(2)

McIntosh v Southern Meats Pty Ltd [1997] Australian Torts Reports 81-424; considered
Breavington v Godleman (1988) 169 CLR 41, at 110-111; considered
McKain v RW Miller and Co (South Australia) Pty Limited (1991) 174 CLR 1, at 39; followed
Stevens v Head (1993) 176 CLR 433; followed
Gardner v Wallace (1995) 184 CLR 95; followed
Salido v Nominal Defendant (1993) 32 NSWLR 524 (CA); considered
Rose v Kwow (1994) 121 ACTR 1; considered
Martin v Molluso Enterprises Pty Limited (1994) 20 MVR 432; discussed
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, 547, 550-552, 555 –556, 566, 567-568; applied
Kontis v Barlin (1993) 115 ACTR 11; referred to
Phillips v Eyre (1870) 6 LR QB 1, at 28-29; referred to
Thompson v Hill (1995) 38 NSWLR 714 (CA); considered
Kolsky v Mayne Nickless Ltd (1970) 72 SR (NSW) 437, at 444; considered
Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 28, at 289; considered
Commonwealth v Mewett (1997) 146 ALR 299, at 316, 340; considered
Samulski v Swinbourn (1996) 23 MVR 377; applied
Sydney City Council v Zegarac, NSW CA unreported, 26 February 1998; considered

GRAEME MASON v MURRAY’S CHARTER COACHES AND TRAVEL SERVICES PTY LIMITED

JUDGES:      HIGGINS, DRUMMOND AND SACKVILLE JJ
PLACE:         CANBERRA
DATED:        2 NOVEMBER 1998

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA          )
  )  AG 100 of 1997
CANBERRA DISTRICT REGISTRY  )
  )
GENERAL DIVISION  )

ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:          GRAEME MASON

Appellant

AND:MURRAY’S CHARTER COACHES AND TRAVEL SERVCES PTY LIMITED

Respondent

JUDGES:      HIGGINS, DRUMMOND AND SACKVILLE JJ
PLACE:         CANBERRA
DATE:           2 NOVEMBER 1998

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Leave to appeal be granted.

2. The appeal be dismissed.

3. The appellant pay the respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA          )
  )  AG 100 of 1997
CANBERRA DISTRICT REGISTRY  )
  )
GENERAL DIVISION  )

ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:          GRAEME MASON

Appellant

AND:MURRAY’S CHARTER COACHES AND TRAVEL SERVICES PTY LIMITED

Respondent

JUDGES:      HIGGINS, DRUMMOND AND SACKVILLE JJ
PLACE:         CANBERRA
DATE:           2 NOVEMBER 1998

REASONS FOR JUDGMENT

HIGGINS J:

1. This is an application for leave to appeal against a decision made on 25 November 1997 refusing leave to the plaintiff to proceed against the defendant, his employer, for damages for personal injury suffered in the course of his employment.

1. Proceedings were in fact commenced on behalf of the plaintiff on 13 May 1997.  The Statement of Claim recited that, on 3 April 1989, the plaintiff slipped and fell whilst upon the defendant’s premises at Alexandria in the State of New South Wales.

1. In reply, the defendant pleaded, inter alia, that the claim was barred by the provisions of the Limitations Act 1985 (ACT) (“ACT Limitations Act”).  As the relevant time bar had indeed expired, it was necessary for the plaintiff to apply, nunc pro tune, for leave to have commenced those proceedings.

Circumstances giving rise to the claim

1. The plaintiff was employed in Canberra as a coach driver on 27 October 1987.  He was engaged to drive coaches to Sydney.  The defendant owned a depot at Alexandria which included an amenities block.  On 3 April 1989, at the amenities block, the plaintiff was intending to have a shower.  He states that the floor was both wet and greasy.  He slipped on the floor, sustaining an injury which he complains continues to cause him pain and disability.

1. He reported the accident forthwith to a Mr Christopher Jones, his supervisor.  A report and a claim form were completed.

1. If the circumstances of the accident were as the plaintiff alleges them to be, then it is at least seriously arguable that the plaintiff has a good claim for damages for negligence against the defendant.

Steps taken by the plaintiff to pursue his rights

1. The plaintiff consulted solicitors relatively promptly following the accident.  On 2 June 1989 he consulted Mr Coen, his current solicitor.

1. As a result, Mr Coen promptly wrote to the defendant seeking particulars relevant to a possible claim.

1. The plaintiff returned to work in August 1989.  He was employed only on local runs out of Canberra.  After 12 months he transferred to Sydney where he did short runs only.  He gave up this kind of work after 18 months due, he claims, to headaches and pain in the left elbow, lower back and left leg.

1. He had moved his residence to Cowra in August 1990.  He gained employment in various forms of manual labour in the district.  At first light work was available.  However, available work became heavier and, about October 1996, the plaintiff had to give up work, at least on a full time basis.  He has engaged in some casual work since.

1. He was not advised of his rights to bring common law proceedings in the Australian Capital Territory until 5 May 1997.  At that time he was told that the limitation period was 6 years.  That was not accurate, though the relevant period had by then expired as had the 6 year period applicable to actions for torts committed in the Australian Capital Territory.

1. On the face of it, it seems surprising that, despite having consulted a solicitor shortly after the accident, advice concerning the bringing of common law proceedings would not be offered until that date.

1. There had been fairly frequent correspondence on behalf of the plaintiff with the defendant, its insurer and the latter’s solicitors from a time shortly after the accident and up until that date.

1. At first, a compensation claim was pursued under the provisions of the Workers’ Compensation Act 1987 (NSW).  That resulted in some payments being made in respect of lost earnings and expenses.

1. On 22 May 1990, Mr Coen requested particulars from the defendant.  Mr Jerry Cole, manager for the defendant at Waterloo NSW responded.  It also appears that the defendant’s insurer had sought medical reports and examinations.

1. Towards the end of 1990, Mr Coen formed the view that the best course would be for the plaintiff to pursue a lump sum under the NSW Workers’ Compensation Act rather than a common law claim there.

1. That advice was reiterated on 13 March 1992.

1. Preparation of that claim continued.  On 23 March 1995 an application for determination under the NSW Workers’ Compensation Act was drafted.  Counsel was asked to advise.  Counsel’s advice was summarised by Mr Coen as follows:

“…that workers compensation proceedings be pursued and a lump sum obtained before consideration is given to commencing a common law claim for damages particularly in view of a threshold requirement of obtaining 33% loss of the whole person before common law proceedings are viable under the Workers Compensation Act of New South Wales”.

1. That course was followed.  On 9 April 1997 a further brief to counsel was delivered.  It is not revealed whether this was the same or another counsel but the advice, received 28 April 1997, was different.  It was summarised by Mr Coen as follows:

“…the Plaintiff could pursue workers compensation entitlements either in New South Wales or the ACT but that common law proceedings should have been commenced in the Australian Capital Territory.  Counsel went on to suggest that common law proceedings should be commenced as soon as possible”.

1. Mr Coen had in about April 1990, contacted Mr Christopher Jones, the Operations Manager for the defendants at Alexandria.  As a result, Mr Jones provided a statement, signed but undated, strongly supportive of the plaintiff’s case.

1. In the course of it, he referred to the cleaner used by the defendant at the premises in question as “Mr Peter Lakiss” (sic).  Mr Jones also referred to a conversation he had had with Mr Cole.  Mr Jones said that Mr Cole had, after the fall, spoken to the cleaner about the area the plaintiff had complained about as causing his fall.

1. On 3 December 1990, Mr Coen spoke with a Mr Peter Lakis.  The latter admitted that he had been the cleaner of the shower block in question at the time of the plaintiff’s fall.  The statement taken from him by Mr Coen was very detailed and, again, strongly supportive of the plaintiff’s case.

1. Of course, the defendant was not aware of these witness statements until served with Mr Coen’s affidavits of 22 and 31 October 1997 respectively.

1. It is clear enough that since shortly after the accident a claim for compensation was being pursued.  That was or should have been obvious to the defendant and its insurer.  Further, even the initial reports made concerning the accident to the defendant and the insurer clearly flagged the distinct likelihood that the amenities block could be regarded as unacceptably hazardous.  Nevertheless, it was not until May 1997 that investigators were engaged to report on the plaintiff’s claim, including the identification of possible witnesses.

1. That report is now advanced as an indication that a fair hearing of the plaintiff’s claim is no longer possible.

1. First, it appears that the defendant could not produce records to indicate the precise work history of the plaintiff.  Mr Cole could not recall his engagement but could recall the plaintiff as not displaying any apparent disabilities.  Indeed, he described him as a “hungry” driver, regularly working 16 hours per day.

1. Second, Mr Jones, when interviewed by the investigator, claimed to have no recollection of the plaintiff or of the accident.

1. The information which was obtained, however, did confirm the engagement of the plaintiff in the Territory and Mr Lakis’ description of the amenities block.  It further confirmed that it had not been altered in any relevant manner since the accident.

1. The lack of employment records was clearly a relevant matter.  However, the defendant was able, in July 1990, to provide the plaintiff’s solicitors with wage rates and other details necessary to advance the plaintiff’s claim for compensation.  Even in August 1997, Ms Smith, the defendant’s insurance manager, located, as she states in her affidavit (at para 3):

“(1)some but not all wage records and group certificates for the period of his employment in Canberra and Sydney

(2)workers compensation claim forms relating to the accident in 1989

(3)A document known as a ‘drivers file’”(sic)

1. The “driver’s file” contained 20 pages, including, from 6 August 1992, a summary of the plaintiff’s employment history for the purposes of unemployment insurance.  That included an estimate of his average hours of work.

1. It is also apparent that the plaintiff was the subject of specialist medical reports from time to time both before and after his claim for compensation was filed.  Those reports were addressed to the defendant’s insurer.

The application for leave to commence proceedings

1. Because the plaintiff suffered injury in New South Wales, section 56 of the Limitation Act 1985 (ACT) is applicable.

1. It provides that:

“If the substantive law of another place, being a State, another Territory or New Zealand, is to govern a claim before a court of the Territory, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court”.

1. In McIntosh v Southern Meats Pty Ltd [1997] Australian Torts Reports ¶81-424, I noted that, despite the inapt wording of this section following the reinterpretation of Breavington v Godleman (1988) 169 CLR 41 in McKain v R W Miller and Co(South Australia) Pty Limited (1991) 174 CLR 1, Stevens v Head (1993) 176 CLR 433 and Gardner v Wallace (1995) 184 CLR 95, it has the effect that, for torts committed in another law district of Australia or New Zealand, the limitation laws of that district or country will apply rather than the limitation law otherwise applicable. The source for the application of those laws is the limitation law of the Australian Capital Territory, however, rather than that foreign law.

1. The relevant limitation law of New South Wales so applicable, it is agreed by the parties, is s.151D of the Workers Compensation Act 1987 (NSW) (“NSW Workers Compensation Act”).  That section provides in sub-section (2):

“A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken”.[1]

[1] Transitional provisions had the effect, in relation to this plaintiff’s claim, of extending this time bar to 26 March 1994.

1. For the purposes of s.56 ACT Limitations Act it is apparent that the “court” which is required to give leave is the court of the Australian Capital Territory in which the proceedings are or are proposed to be taken.  A question could have arisen as to its applicability had the plaintiff made a claim under the ACT Workers’ Compensation Act rather than the NSW Act but, fortunately, that question does not arise in this case.

1. The discretion to grant leave is to be exercised in accordance with the terms of s.57 ACT Limitation Act:

“Where a court of the Territory exercises a discretion conferred under a limitation law of a place being a State, another Territory or New Zealand that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place”.

The decision appealed from

1. His Honour, the Chief Justice, noted that ss.56 and 57 ACT Limitations Act were to be applied. The discretion conferred by s.151D NSW Workers Compensation Act was that which was to be exercised rather than the discretion conferred by s.36 of the ACT Limitation Act.

1. In New South Wales, the discretion conferred by s.151D was considered in Salido v Nominal Defendant (NSW) (1993) 32 NSWLR 524. As his Honour observed at 6:

“The three judgments in Salido lay down guidelines only and although each set of guidelines is expressed in different terms, it is well arguable that none of the sets of guidelines is in essence different from the others.

The basic and most obvious principle is that it must be fair and just to extend the time.  Hardship to the plaintiff if the extension is refused and prejudice to the defendant if the extension is granted are both relevant.”

1. That summary of Salido seems to me, with respect, to be quite accurate.  It does not, of course, purport to be an exhaustive list of relevant factors.  Such a list would be extremely difficult to compile.  It would certainly include, however, the matters referred to in sub-s.36(3) of the ACT Limitation Act.  They are:

“(a)       the length of and reasons for the delay on the part of the plaintiff;

(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c)the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent, if any, to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e)the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages”.

1. That list does not purport to be exhaustive either. The essential question is whether it is fair and just, or, as s.36 expresses it, just and reasonable, to extend time. The test required by s.36 is not a different one from that Salido would suggest is applicable to s.151D.

1. In this matter there were two factors which appeared to weigh heavily with his Honour.  The first was that:

“The defendant has shown positively that despite efforts the people who cleaned the shower block where the plaintiff fell can no longer be located.” (at 6)

1. If true, that would have deprived the defendant of the opportunity to adduce evidence of the steps it had taken to ensure the cleanliness of the amenities block and hence the safety of the floor.

1. The second related to the consequences to the plaintiff if the application was refused.  That his Honour identified as the denial to the plaintiff of “the component of damages referable to pain and suffering and loss of enjoyment of life (these days often referred to as “general damages”)”.  The plaintiff would also be denied the finality of a common law judgment as opposed to periodic payments of compensation for lost earnings and expenses incurred with the attendant liability to further surveillance and variation applications.

1. His Honour acknowledged the force of those considerations. But for a further matter involving the interpretation of s.57 of the ACT Limitation Act, it seems that his Honour might well have acceded to the application.

1. That further matter his Honour expressed as follows:

“…I am confidently, if not comfortably, persuaded that the provisions of the New South Wales legislation do not lead to the conclusion that it is ‘just’ that the application be granted. If, before commencing proceedings for workers’ compensation in New South Wales, the plaintiff had brought proceedings in New South Wales seeking to have the time extended in that State to bring an action for damages, I have no doubt that the extension would have been refused. This would have been so not only for considerations already discussed [ie prejudice to the defendant both constructive and actual], but also on the ground that in the light of Part 5 Division 3 of the NSW Workers Compensation Act the plaintiff had not shown that he was entitled to damages for non-economic loss, and that in respect of economic loss he has an alternative remedy by way of workers’ compensation. The plaintiff, in my view, can be in no stronger position by issuing a writ in the ACT and then seeking an extension of time to the date of the issue of the writ in order to avoid the effect of the law of New South Wales as the lex loci delicti. This Court must exercise the discretion to extend the statutory bar as it would be exercised in a comparable case by a New South Wales court…”. (at 9)

1. There is no doubt that his Honour’s assumption is correct.  If the plaintiff had sued in New South Wales the calculation of damages would have been subject to the limitations imposed by the provisions of the NSW Workers’ Compensation Act to which his Honour referred.  The plaintiff in this case would, it seems to be conceded, not receive more under that regime than the compensation rights he enjoyed without proof of fault.

1. However, the question does arise whether his Honour was correct to infer that s.57 requires the court to assume that in all respects the discretion to extend time is to be exercised not only as if it was subject to the relevant NSW limitation law but also as if the action had been or was intended to be, litigated in New South Wales. It is not entirely clear whether his Honour was persuaded that the terms of s.57 required that approach, or whether the policy objective of deterring litigants from “forum shopping” made it a relevant consideration in determining what is “fair and reasonable”.

Appellant’s argument

1. The appellant expressly abandoned any argument that s.56 of the ACT Limitation Act was inapplicable.  That contention had been directed to the expression “…if the substantive law of [New South Wales] is to govern a claim”.  It is true that, at the hearing of an action in tort, the law of the forum is the applicable law to determine both liability and damages.  However, that does not deny any “governing” role to the law of the place of the delict.

1. The second contention was that his Honour had misapprehended or overlooked evidence that the cleaners of the shower block at the time of the accident were not shown to be unavailable.  That contention merits further examination.

1. The third contention was that his Honour had misconstrued either s.57 itself or, at least, the policy objectives of it.

1. That contention also merits consideration.

Prejudice to the respondent – lack of availability of evidence from cleaners

1. It is true that, as at 23 May 1997, investigators engaged on behalf of the defendant’s insurer reported that they could not identify the cleaners in question.  However, as at the date on which Mr Coen’s affidavit of 22 October 1997 was served, it would have been clear that the cleaner was not only named, his phone number was given.  Further, a copy of the relatively detailed statement taken from him was also made available.

1. The motion for extension of time was heard on the 31^st October 1997.  The defendant, of course, could not have been expected by then to have verified the cleaner’s identity and ascertained his current state of recollection.  There was an obvious remedy for that.  The defendant might have asked for an adjournment to check on the whereabouts, availability and current state of recollection of Mr Lakis.  Indeed, there might well have been some purpose served by reminding Mr Jones of his previous statement. That may have refreshed his memory.

1. In the absence of such further enquiries it could not be assumed that Mr Lakis and Mr Jones were unable to give relevant and accurate evidence.

1. It seems that his Honour either overlooked Mr Coen’s evidence concerning the cleaners or, for some reason not expressed, rejected it or regarded it as not relevant.

1. It seems to me that the evidence was relevant and, once regard is had to it, it is impossible to conclude that the defendant had established that it would suffer actual prejudice if the matter proceeded to trial on the basis of a lack of evidence from either Mr Lakis or Mr Jones.

1. It follows that his Honour did over-estimate the prejudice to the defendant.  It is, therefore, necessary to re-evaluate the refusal of the plaintiff’s application.

1. However, there is more.

The relevance of the restriction on damages imposed by the NSW Workers’ Compensation Act

1. It is apparent that his Honour took the view that s.57 of the ACT Limitation Act required not only that the discretion enacted in the relevant law district be applied in the same manner as it would be there applied but also as if the action or proposed action was being litigated in that place.

1. No such issue was raised in Rose v Kwow (1994) 121 ACTR 1. There, on the facts of the case, the relevant Queensland limitation law, applied as it would be applied in Queensland, led to the conclusion that there was no discretion to extend the time bar.

1. Such an issue did arise in Martin v Molluso Enterprises Pty Limited (1994) 20 MVR 432. The relevant accident occurred in New South Wales. The plaintiff was an ACT resident. I noted, at 434, that, given the decision of the High Court in Stevens v Head (1993) 176 CLR 433, the limitation on the calculation of damages imposed on a similar matter litigated in New South Wales had no application.

1. I did, at 435, pose the question for decision as being:

“…whether a court of the State of New South Wales would grant leave for this plaintiff to commence proceedings notwithstanding the expiry of the time limited by s.52(4) of the [Motor Accidents] Act.”

1. I then referred to Salido v Nominal Defendant(NSW) (1993) 32 NSWLR 524. That reference was for the purpose of identifying the guidelines regarded by the NSW Court of Appeal as appropriate for New South Wales courts to follow in such cases.

1. That revealed no relevant difference in the general principles governing the exercise of the discretion conferred by s.36 of the ACT Limitation Act.  That is, whether it is “fair and just” in all the circumstances to extend the time seems to me no different from deciding whether it is “just and reasonable” to do so.  It was not submitted in that case that the test involved an assumption that the “comparable case” was to be decided in accordance with the procedural as well as the substantive laws of New South Wales.

1. McIntosh v Southern Meats Pty Limited [1997] Australian Torts Reports ¶81-424 was also referred to.  In that case, an issue was raised as to whether, given the re-interpretation by the High Court of the rules apparently endorsed in Breavington v Godleman (1988) 169 CLR 41, the substantive law of another law district could be said to “govern” proceedings in the ACT for damages in respect of a tort committed in that other district. I held that the law of New South Wales, though referred to only for the purpose of determining whether the claim was justiciable in the ACT, could still be regarded as “governing” that claim. That does not deny the role of the law of the forum, both substantive and procedural, in the determination of the proceedings.

1. I noted that one factor which, in that case, favoured the grant of the application was the prejudice to the plaintiff if denied the opportunity to pursue a seriously arguable common law claim for substantial damages.  I noted also that the plaintiff’s compensation rights would continue.  The “more valuable” common law rights referred to at 64,105 was a reference to the plaintiff’s expectation of damages in the ACT not a reference to the more limited damages which would have been available if the matter had proceeded in New South Wales.

1. The reference in s.57 of the ACT Limitation Act to a “comparable” case refers, I think, to a case of the same nature as the case proceeding in the Territory.  It does not artificially preclude the relevant difference between a case actually to be litigated in New South Wales and a case actually to be litigated in the ACT.  It is designed to ensure that the relevant ACT court applies any discretion conferred by the NSW Limitation law in the same manner and according to the same principles as would a NSW Court.

1. There is, no doubt, an incentive for plaintiffs to prefer to litigate in a jurisdiction in which the procedural laws give the greatest benefit.  A plaintiff has the advantage of the initial choice of venue.  The legislature has chosen to reduce that advantage so far as limitation periods are concerned but not so far as the calculation of damages is concerned.  It is further reduced by the terms of the cross-vesting legislation which would enable a defendant to apply to transfer a matter to a more appropriate jurisdiction if there be one.  In this case, no such issue was raised, no doubt because a reasonable connection with the ACT is apparent.  Indeed, even before the relaxation of the nexus rules for service of process under the Service and Execution of Process Act 1992 (Cth), this action could have been commenced in the ACT as of right.

1. It seems to me therefore, that either his Honour placed an unduly restrictive interpretation on the terms of s.57 or took account of a matter not properly relevant to the exercise of the discretion arising under s.151D of the NSW Workers’ Compensation Act.

1. It follows that the decision appealed from must be set aside.  It is preferable, in the interests of finality, for the discretion to be re-exercised by this court.

The re-exercise of the discretion to extend time

1. It is for the plaintiff to persuade the Court that it is “just and fair” to grant the leave sought. Whilst that discretion is not expressly fettered there are a number of factors which will usually be relevant. Some of those are set out in s.36 of the ACT Limitation Act.

1. The length of and reasons for delay since the cause of action arose are clearly relevant.  Understandable reasons for delay tend to make it fair to extend time.  Conversely, a lack of good reason for delay may make it less appropriate to extend time.

1. The length of delay has particular relevance.  The longer the delay, the more likely it is that the fair trial of the action will be prejudiced.  That prejudice may affect all parties but it is of particular concern when it affects the ability of the defendant fairly to defend the action.  Some prejudice is inevitable with any substantial delay.  Of course, all actions are to some extent prejudiced by delay.

1. Further, there is the matter referred to by McHugh J and Dawson J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Weight must be accorded to the reasonable and legitimate expectation of a potential defendant that claims can no longer be made after the relevant time limit has expired. Further, the length of the time bar itself indicates the relevant legislative intent that litigation be resolved as quickly as possible and some classes of litigation more quickly than others.

1. In McIntosh v Southern Meats Pty Limited (supra) I pointed out that it is a greater imposition on a defendant to extend time when the time bar has expired a long time ago than where the time bar has only recently expired.

1. In this case the time bar expired on 26 March 1994.  Action was commenced on 13 May 1997.  The delay after expiry of the time bar is a little over 3 years.  The delay since the original accident is a little over 8 years.

1. The reasons for delay are, to some extent, understandable.

1. The plaintiff was, in 1990, legally advised that he should pursue only compensation rights rather than common law rights.

1. Although by then the right to sue in respect of work related injuries had been legislatively restored in New South Wales, the limitations imposed by that legislation on the sums which might be awarded were such that that advice would be reasonable.  At that time there was also a view, supported by some authority, that a plaintiff would gain no advantage in terms of the extent of available damages by suing outside New South Wales – see Kontis v Barlin (1993) 115 ACTR 11, 17 per Hogan M. In that case the learned Master referred to his view, until Stevens v Head held the contrary, that:

“…the principles according to which damages for personal injury are to be assessed were not matters of procedure, but matters of substantive law.”

1. A number of those cases were then referred to.

1. Accordingly, at least until the decision in Stevens v Head became known, the advice tendered to the plaintiff in this case in 1990 would have been regarded as sound.  That advice was again sought and was repeated in 1992.  Again that advice would have been reasonable.  In 1995, counsel’s advice was sought and the previous advice, to pursue only compensation rights, was further repeated.  It was not until shortly before the writ issued in these proceedings that different legal advice was tendered.

1. It is not clear whether counsel who advised the plaintiff in 1995 adverted to the option raised by Stevens v Head of suing in the ACT for damages at common law free from the restrictions thereon imposed by the NSW Workers Compensation Act.  Given that the plaintiff gave unchallenged evidence that until 1997 he was unaware of this option, it seems likely that he did not.

1. It cannot be said that the plaintiff chose to abandon any right to sue at common law in full knowledge of his rights.  On the other hand, the defendant did nothing to dissuade the plaintiff from taking one option rather than the other.

1. There is no positively satisfactory explanation for the failure of the plaintiff’s legal advisers to obtain instructions to sue in the ACT at common law within a reasonable time after the decision in Stevens v Head became known.

1. That does not, of course, end the matter.  Prejudice to the defendant as a result of the delay is another matter.  The presumptive prejudice by reason of the delay to date is not to be lightly overlooked.  However, in this case, actual prejudice cannot, in my view, be regarded as substantial.

1. Contrary to the defendant’s assertion that the persons who cleaned the shower block where the plaintiff fell could not be located, there is prima facie evidence that they are able to be located.  The defendant has not discharged its evidentiary onus to displace that conclusion.  Similarly, Mr Jones, a fairly proximate witness to the fall, has not been shown to have lost irrevocably any relevant recollection of the incident, though he may lack spontaneous recollection.  However, his statement, that of Mr Lakis and of the investigators retained on behalf of the defendant reveal no real contradiction between them as to the state of the premises.

1. This is a case where the plaintiff’s medical condition has been kept under review.  It appears that sufficient records exist to assess his work history with the defendant.  His work history generally has been given attention by those who insured the defendant because of the plaintiff’s claims for compensation and other benefits.  No claim of substantial actual prejudice could be made as to that aspect of the matter.

1. That also lessens, to some extent, the prejudice flowing from the earlier expiry of the time bar.  The defendant’s insurer is faced, in any event, with a reasonably substantial claim under the NSW Workers’ Compensation Act even if the common law claim did not proceed.

1. That consideration, of course, mitigates, to some extent, the injustice to the plaintiff if required to forego finally any rights he may have had otherwise to claim general damages.  The learned trial judge acknowledged the force of arguments advanced on behalf of the plaintiff that to gain a lump sum including general damages would be a substantial benefit to him in putting future uncertainty to an end and allowing him to “put the injury as far as possible behind him and get on with his life” (9).

1. It seems to me that, but for the  incorrect assumption that the availability of general damages in these proceedings was to be ignored for the purpose of considering this application, his Honour might well have granted the application.  When to that is added the over-statement his Honour apparently accepted of the prejudice to the defendant if the matter proceeds to trial, it seems to me that the plaintiff has discharged the onus upon him to demonstrate that it is fair and reasonable to grant the application.

1. I would therefore grant leave to appeal, order that the appeal be upheld and the orders appealed from be set aside.  In lieu thereof, I would grant leave to the plaintiff, nunc pro tune, to commence these proceedings against the defendant.

1. The defendant should pay the plaintiff’s costs of this appeal.  The costs of the application before the Supreme Court should be costs in the cause.

   I certify that this and the seventeen (17) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins

   Associate:

   Date:     2 November 1998

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 100 of 1997

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	GRAEME MASON APPELLANT
AND:	MURRAY'S CHARTER COACHES AND TRAVEL SERVICES PTY LIMITED RESPONDENT

JUDGES:	HIGGINS, DRUMMOND AND SACKVILLE JJ
DATE:	2/11/98
PLACE:	CANBERRA

REASONS FOR JUDGMENT

DRUMMOND J:

I have had the benefit of reading in draft the reasons for judgment of both Higgins and Sackville JJ.

An important issue raised by this appeal is whether the learned primary judge was entitled to have regard to the appellant’s failure to show that, if he had sued in NSW, he would have been entitled to damages for non-economic loss, notwithstanding the restrictions imposed by Div 3 of Part 5 the Workers Compensation Act 1987 (NSW) on the damages recoverable by a worker at common law for injury caused by the negligence or other tort of the worker’s employer.

The answer depends upon the true construction of s 57 the Limitation Act 1985 (ACT). This section can only operate if s 56 of that Act would itself operate to deny a plaintiff suing in the ACT in respect of a wrong that occurred in NSW the right to sue because of the impact of the NSW limitation law (here, s 151D of the NSW Act) upon his cause of action.

Section 56 assumes the existence of a body of law that regulates when the ACT Court must have regard to the law of other parts of the Commonwealth in dealing with claims brought in the ACT Court that arise out of torts committed there. This body of law is found in the series of recent High Court cases referred to by the other members of the Court.

The majority judgments in McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 38 ‑ 39 and in Stevens v Head (1993) 176 CLR 433 at 453 establish, with respect to what are referred to in Stevens v Head as “intranational torts”, the two-limbed test there set out for determining whether a plaintiff may sue in the ACT Court on a tort occurring in some other part of the Commonwealth.

However, I do not think this test is concerned only with when a claim based on a wrong committed outside the forum is justiciable in the courts of the forum, in the sense in which that term is used by Clarke JA in Thompson v Hill (1995) 38 NSWLR 714 at 734. It can be seen from the majority judgment in Stevens v Head that the operation of the second limb of this test is not necessarily spent once the court of the forum decides to embark on a determination of the plaintiff’s claim on the cause of action arising outside the forum:  this second limb may, depending upon the nature of the relevant rules of the locus, operate to modify the rules of the forum that would ordinarily govern the determination of the plaintiff’s entitlements once the court of the forum has decided that the plaintiff’s claim is justiciable there.  If, for example, the law of the locus excludes from the assessment of damages for tortious injury a particular head of damage (eg, non-economic loss), that will be a substantive law of the locus (Stevens v Head at 457). The second limb of the McKain test will not then operate to deny justiciability in the forum to the plaintiff’s claim, but will require the court of the forum to apply that particular substantive law of the locus together with those laws of the forum which, subject to that law of the locus, remain relevant in assessing the damages, even though that court would otherwise have assessed those damages wholly in accordance with the laws of the forum.  See Stevens v Head at 460: if the NSW law there in question had been substantive (rather than procedural), the claim would still have been justiciable in the Queensland court, but that court would have had to apply the NSW law in preference to those of its own laws that conflicted with it, in assessing the plaintiff’s damages under Queensland law as the law of the forum, so modified by the NSW law.

It is therefore difficult to accept that Dawson J, a member of the majority in both McKain and Stevens, intended to restate the rule in McKain as one concerned solely with justiciability.  His Honour was there concerned only with a law of the locus, legislatively deemed to be a substantive rule, which completely shut the plaintiff out from enforcing any claim in the locus, with the necessary consequence that the second limb of the McKain test required the court of the forum to refuse to entertain the plaintiff’s claim.  His Honour’s comments in Gardner v Wallace (1995) 184 CLR 95 at 98 - 99 referred to by Clarke JA in Thompson at 741 - 742 in support of Clarke JA’s view that the McKain test is concerned only with justiciability, must, I think, be read subject to that.

The second limb of the McKain test requires all relevant substantive laws of the locus to be applied by the court of the forum. This is so whether the result is that the court of the forum denies justiciability to the plaintiff’s claims or only that the court of the forum applies to the determination of the plaintiff’s claims those laws of the locus, together with the residue of the laws of the forum not made inapplicable by those laws of the locus. It can therefore be said that the substantive law of another part of the Commonwealth will, in the language of s 56 of the ACT Act, “govern” any claim before the ACT Court arising out of a tort occurring elsewhere in Australia, either because that law will require the ACT Court to deny justiciability to the claim or because it will still require any conflicting laws of the ACT to yield to that ex-ACT law, if the ACT Court decides it can properly entertain the claim.

Since s 56 of the ACT Act in effect deems the limitation law of NSW to be a substantive law, the legislative direction to the ACT Court that it should be “applied accordingly”, ie, as a law that governs the claim before the ACT Court, should, in my opinion, be read as requiring the ACT Court to apply the NSW limitation law to the exclusion of any conflicting ACT limitation law. That is a reading supported by the purpose of the legislation, as revealed by the Explanatory Memorandum to the Bill of this enactment, to which Sackville J refers. It in turn is strong justification for reading s 57 as a direction to the ACT Court that it can mitigate the effect of the governing time bar created by the NSW law, but only by applying the provisions of the NSW limitation law that permit the extension of its time bars as closely as possible to the way a NSW Court would apply those provisions if the case brought before the ACT Court had instead been brought in the NSW Court. Such a reading of ss 56 and 57 is not only consistent with the language of those provisions but also with the anti-forum shopping policy of the legislation.

I therefore reach the same conclusion as Sackville J that the learned primary judge was correct in taking into account the restrictive provisions of Div 3 of Part 5 of the 1987 Act, even if those provisions be procedural rather than substantive rules of NSW law. (As Sackville J points out, James J in Samulski v Swinbourn (1996) Aust Torts Reports 81-389 applied certain special limitation provisions of the NSW Motor Accidents Act 1988 to a claim brought before the NSW Court in respect of an ACT tort on the ground that that Court having jurisdiction and the claim being justiciable there, the special NSW limitation provisions applied as a law of the forum. This result is, in my respectful opinion, consistent with the effect that I think should be given to ss 5 and 6 the Choice of Law (Limitation Periods) Act 1993 (NSW), which are equivalent to ss 56 and 57 the Limitation Act (ACT), since there is nothing in the Limitation Act of the ACT that conflicts with these special provisions of the NSW limitation law. These provisions could operate as laws of the forum outside the only area that was governed by the ACT limitation law, which by s 11 imposes only a simple six year time bar.)

I agree for the reasons given by Higgins J that the learned primary judge’s discretion miscarried because of the way in which he evaluated the respondent’s claim of actual prejudice. It is accepted that this Court should itself exercise the discretion, which I consider arises by force of ss 56 and 57 of the ACT Act, which direct the ACT Court to apply s 151D(2) the Workers Compensation Act (NSW) in lieu of s 36 the Limitation Act (ACT).

I consider that the respondent has not shown actual prejudice due to the loss of records relating to the appellant’s employment history in view of what is available and the absence of evidence suggesting that other records, no longer available, may be of significance or due to the fact that the appellant experienced an accident at work a short time after that the subject of his claim, since the probabilities are that this was an incident of minor significance only. But the factors which mitigate against the grant of the extension of time which the appellant seeks, discussed by Sackville J and which include the significant impact that Div 3 of Part 5 of the NSW Act must be taken to have on the appellant’s claim to the extension of time are such as to require the conclusion reached by his Honour on this part of the case.

I agree with the orders proposed by his Honour.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             2/11/98

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	AG 1 of 1998

BETWEEN:	GRAEME MASON APPELLANT
AND:	MURRAY’S CHARTER COACHES AND TRAVEL SERVICES PTY LIMITED RESPONDENT

JUDGES:	HIGGINS, DRUMMOND & SACKVILLE JJ
DATE:	2 NOVEMBER, 1998
PLACE:	CANBERRA

REASONS FOR JUDGMENT

SACKVILLE J:
Introduction
I have had the advantage of reading in draft the judgment prepared by Higgins J, which sets out the facts and the issues in this case.  I do not repeat what his Honour has said.  I note, however, that the matter before the primary Judge was instituted by a motion filed on 29 September 1997, in which the appellant sought an order extending until 13 May 1997 the time in which he could commence proceedings against the respondent.  The principal proceedings were in fact filed by the appellant in the Supreme Court of the Australian Capital Territory on 13 May 1997.  The appellant’s motion did not identify the legislation pursuant to which the order for an extension of time was sought.

As Higgins J has explained, the appellant put forward two principal contentions. The first was that the primary Judge had erred in concluding, on the evidence before him, that the respondent had affirmatively established that it would suffer actual prejudice if an extension of time under s 151D(2) of the Workers Compensation Act 1987 (NSW) (“Workers Compensation Act”) were to be granted. The appellant’s second contention was that the primary Judge had misconstrued s 57 of the Limitation Act 1985 (ACT) (“Limitations Act (ACT)”).  I shall address the second argument first.

The Appellant’s Second Contention
General Principles
In Australia, it is very common for a person injured in an accident in one State or Territory to sue for damages in tort in another State or Territory.  This is such a case.  It might be thought that “hum-drum” accident claims of this kind (cf F K Juenger, “Tort Choice of Law in a Federal System” (1997) 19 Syd L Rev 529, at 531) are governed by reasonably simple and straightforward rules, that serve clearly defined policy purposes.  It is difficult to suggest that the present law answers that description.

The High Court has authoritatively determined that a modified version of the common law choice of law rule governing tort claims formulated by Wills J in Phillips v Eyre (1870) 6 LR QB 1, at 28-29, should be applied in Australia.  In McKain v R W Miller & Company (South Australia) Pty Ltd (1991) 174 CLR 1, at 39, a majority of the Court (Brennan, Dawson, Toohey and McHugh JJ) accepted the reformulation of the general rule expressed by Brennan J in Breavington v Godleman (1988) 169 CLR 41, at 110-111:

“A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if – 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.”

The majority added (at 39) what Professor Nygh (Conflict of Laws (6th ed 1995), at 342) describes as a third condition, but which may simply be an elaboration of the second:

“the civil liability to which the law of the place in which the wrong occurred gave rise must be a continuing liability; if that civil liability be extinguished, the cause of action conferred by the common law of the forum is extinguished too.”

The formulation in McKain relating to intranational torts was repeated by the same majority in Stevens v Head (1993) 176 CLR 433, at 453. Their Honours said there that this

“formulation focuses attention on the kind of  civil liability which a plaintiff is seeking to enforce.  A plaintiff’s cause of action under the law of the forum thus depends in part upon an affirmative answer to the question whether, by the lex loci, the relevant facts gave and continue to give rise to a civil liability of the kind which the plaintiff seeks to enforce.”

The High Court has also reaffirmed the significance of the distinction between “substantive” and “procedural” laws.  As the majority explained in Stevens (at 456-457):

“In determining whether, by the lex loci, the relevant facts give rise to a civil liability of the kind which the plaintiff seeks to enforce, the courts of the forum distinguish between substantive and procedural laws.  Procedure is governed exclusively by the laws of the forum, but the substantive laws of the place of the tort determine whether, by those laws, there exists a civil liability of the kind which the plaintiff seeks to enforce.  In McKain, it was held that a South Australian law which imposed a limitation on the time within which to bring an action in the courts of that State for damages for a tort committed within that State but which did not extinguish the cause of action was not a substantive law which precluded the bringing of an action in the courts of New South Wales for damages for a tort committed in South Australia.  The majority followed a line of authority which distinguished between a statute of limitation which does no more than cut off resort to the courts for the enforcement of a claim and a statute which extinguishes civil liability and destroys a cause of action.  The former is classified as a procedural law, the latter as substantive.”

This view was adopted notwithstanding criticism put forward by the dissenters in McKain, that to classify some limitation actions as procedural and others as substantive is “artificial” and allows different legal consequences to flow from a single set of events, depending on where the proceedings are instituted: McKain, at 29, per Mason CJ; at 52, per Deane J (“anomalous and unreal character” of the rule that limitation provisions are procedural only).

Criticisms of the Current Law
The difficulties associated with the principles formulated in McKain have hardly gone unnoticed.  The Law Reform Commission (“LRC”), in its report on Choice of Law (Report 58, 1992), said (at par 6.14) that

“the rule in Phillips v Eyre as interpreted in McKain engenders confusion, uncertainty, injustice, and forum shopping”….

The current law has also attracted academic criticism.  One commentator has argued that “[c]hoice of law reform is long overdue in Australia”, pointing out that the rule in Phillips v Eyre has been abrogated in its home country: Juenger, at 531; Private International Law (Miscellaneous Provisions) Act 1995 (UK), ss 11, 12.  Another commentator, after analysing the course of post-McKain authority, has said that the subsequent cases

“have succeeded in increasing the confusion and uncertainty, an achievement which seemed difficult to imagine….  There has still been no legislative reform, despite the fact that the common law continues to unravel into chaos”.

M Davies, “Exactly What is the Australian Choice of Law Rule in Torts Cases?” (1996) 70 ALJ 711, at 719.  See also Thompson v Hill (1995) 38 NSWLR 714 (CA), at 717-718, per Kirby P.

The LRC recommended that the common law choice of law rule applicable to tort claims with an inter-state element should be replaced and that the lex loci delicti should determine the dispute, subject to a limited exception (par 6.27).  The exception was to apply where there was a “substantially greater connection” with a place other than the place where the tort occurred (par 6.62).

The LRC also addressed the principle, applied in McKain, that usually treats limitation periods as procedural for choice of law purposes.  It considered that this principle encouraged forum shopping and created confusion (par 10.25-10.26).  The LRC recommended (par 10.33)

“that limitation periods should be treated as matters of substance.  The exercise of discretion [under a limitation period] should be decided in accordance with the lex causae…”.

Limitation Act (ACT), ss 55-57

The LRC’s general proposals have not yet been implemented.  However, its recommendations concerning limitation periods prompted the Standing Committee of

Attorneys General, at its July 1992 meeting, to ask the Special Committee of Solicitors-General to report on what action should be taken to resolve the difficulties created by the decision in McKain.  The Committee unanimously recommended the adoption of the LRC’s recommendations.  Model legislation was prepared and enacted, within minor variations, in all States and Territories.  (This background is outlined in the second reading speech for the Choice of Law (Limitation Periods) Bill 1993 (NSW) and the Limitation (Amendment) Bill 1993 (NSW), NSW Parl Deb, 17 November 1993, Leg Ass, at 5567-5568.)

Sections 55 to 57 of the Limitation Act (ACT) were inserted by the Limitation (Amendment) Act 1993, and took effect from 30 November 1993.  They read as follows:

“Division 4 – Choice of Law

Interpretation
55.In this Division, unless the contrary intention appears –

‘court’ includes arbitrator;

‘limitation law’ means a law that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced.

1. Characterisation of limitation laws
   If the substantive law of another place being a State, another Territory or New Zealand, is to govern a claim before a court of the Territory, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.

   Exercise of discretion under limitation law

   57.      Where a court of the Territory exercises a discretion conferred under a limitation law of a place being a State, another Territory or New Zealand that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place.”

These provisions are substantially identical to ss 3, 5 and 6 of the Choice of Law (Limitation Periods) Act 1994 (NSW). The equivalent legislation in other States and the Northern Territory is conveniently collected in the judgment of Gaudron J in Commonwealth v Mewett (1997) 146 ALR 299, at 324 n 108.

The Explanatory Memorandum accompanying the Limitation (Amendment) Bill makes it clear that the legislation was designed to address the problem that McKain was perceived to have created:

“In McKain…the High Court confirmed that statutes that set down limitation periods form part of the procedural law.  Accordingly, the limitation law that is to be applied is that of the jurisdiction in which an action is commenced.  For example, if a motor vehicle collision happens in South Australia, which has say a three y ear limitation period for personal injuries matters, but a person who was injured in the collision resides in and commences proceedings in New South Wales, which has say a six year limitation period, the New South Wales period will be applied.  This is so even though in other respects the law to be applied will be that of South Australia on the basis that its law has the closest connection to the matters that lead to the proceedings being taken.

The Standing Committee of Attorneys-General has resolved that each State and Territory should enact legislation that will provide that the limitation law to be applied is that of the place that supplies the substantive law that will govern a matter.  In the example given above the substantive law would be South Australia’s and its limitation law would apply.”

The Minister (the Attorney-General), in his second reading speech on the Limitation (Amendment) Bill, quoted the substance of the Explanatory Memorandum and added this observation (ACT Parl Deb, 23 November 1993, at 3987):

“This is, in effect, to prevent forum shopping across Australia.  I understand that this provision is being enacted or has been enacted in all Australian jurisdictions”.

Gardner v Wallace
It is a measure of the complexities of this area of law that in Gardner v Wallace (1995) 184 CLR 95, a single Judge decision of the High Court, Dawson J said (at 98) that the wording of the Victorian equivalent to s 56 of the Limitation Act (ACT) (s 5 of the Choice of Law (Limitation Periods) Act 1993 (Vic)) “may be based upon [a] misconception”. In that case, the plaintiff was injured in December 1990 while jogging in Surfers Paradise, Queensland,
 allegedly as the result of the negligent performance of construction work by the defendant, a New Zealand resident.  The plaintiff issued proceedings in the County Court of Victoria against the defendant and the Gold Coast City Council.  He was met with a defence that his cause of action was statute-barred, because Queensland had a three year limitation period.  In an attempt to avoid this difficulty, the plaintiff instituted proceedings in the High Court and sought leave to serve a writ of summons in New Zealand.  He proposed to apply to have the matter remitted to Queensland, acting on the basis that the Queensland legislation (s 11 of the Limitation of Actions Act 1974 (Qld)) on its proper construction, applied only to actions commenced in Queensland.

Dawson J, although rejecting the application, held that the plaintiff was correct in apprehending that the limitation defence was likely to succeed. His Honour analysed the operation of s 5 of the Victorian Act this way (at 98-99):

“The effect of s 5 of the Choice of Law (Limitation Periods) Act is not entirely clear.  Its wording may be based upon the misconception that in McKain v R W Miller & Co (SA) Pty Ltd this Court decided that in an action in one State in respect of a tort committed in another State, the substantive law to be applied is that of the State where the tort was committed, that is to say, the lex loci delicti.  McKain v R W Miller & Co (SA) Pty Ltd did not decide that.  It decided that, provided two conditions were met, an action could be maintained in a State other than that in which the tort occurred and that the law, procedural and substantive, to be applied in resolving the action was the law of the State in which the action was heard, that is to say, the law of the forum. 

[His Honour set out the two conditions.]

Were those two conditions to be met in the plaintiff’s action in the County Court of Victoria (and it seems that they would be met), the law to be applied in determining his claim would be the law of Victoria.  Of course, that law would include s 5 of the Choice of Law (Limitation Periods) Act but under that section the question would arise whether the substantive law of another State, namely, Queensland would govern the claim before the court so as to import the limitation period under s 11 of the Limitation of Actions Act (Q).  The more natural conclusion is that the law which would govern the claim would be the law which determined the rights and liabilities of the parties which would the law of Victoria.  It is for that reason that I have suggested that those responsible for the drafting of s 5 may have misconceived the effect of the decision in McKain v R W Miller & Co (SA) Pty Ltd.  Such a conception may have been assisted by the concession in argument in that case that “the substantive law of the place of the wrong is ‘imported into the forum’”, a concession which was erroneous if it meant any more than that the substantive law of the place of the wrong is imported for the purpose of

determining whether the second condition for the assumption of jurisdiction is satisfied.

However, to the extent that the substantive law of Queensland must govern the answer to the second condition laid down in McKain v R W Miller & Co (SA) Pty Ltd, it may be said to govern the claim in the County Court of Victoria in the sense that if that condition is not met, the action is not maintainable in that court.  Whilst that is, perhaps, not the most natural construction of the section, it is a construction which it is capable of bearing and it conveys the meaning which I think it ought to be given.”

His Honour went on to say that s 5 was clearly intended to reverse the holding in McKain that a limitation period of a procedural character in the State where the alleged wrong occurred could not affect an action commenced in another State in respect of that tort. As Dawson J said (at 100):

“It is a measure which is intended to reduce forum shopping and, being capable of bearing the meaning it was intended to have, it should be given that meaning.”

With respect, the legislative history clearly supports Dawson J’s conclusion as to the intent underlying s 5 and equivalent legislation in other Australian jurisdictions, such as s 56 of the Limitation Act (ACT).

Justiciability versus Choice of Law

It is implicit in Dawson J’s analysis that the rule restated in McKain concerns “justiciability”. That is, on his approach, the rule stipulates a two-stage test that must be satisfied as a preliminary matter before the forum can entertain the case: see Davies, above, at 712-714. If the test is satisfied, the forum must choose the law to apply to the case. In Dawson J’s view, that law is the lex fori, and not the lex loci delicti.

In Thompson v Hill, Clarke JA, after a careful analysis of the cases concluded that the balance of authority supported Dawson J’s view.  However, his Honour recognised that in Breavington v Godleman, both Mason CJ (at 79) and Brennan J (at 110) accorded primacy in all respects to the lex loci delicti.  Brennan J specifically said in Breavington that the

“two conditions [derived from Phillips v Eyre] are not merely criteria of the forum’s jurisdiction; they state the substantive law which governs a plaintiff’s right to recover a judgment in respect of an extra-territorial wrong.”

Clarke JA pointed out that this view was not shared by Dawson and Toohey JJ in Breavington (at 145, 160-161) and that the matter had not been clarified in Stevens v Head.  Accordingly, he took the view that the authority of earlier cases, such as Kolsky v Mayne Nickless Ltd (1970) 72 SR(NSW) 437, at 444, and Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 28, at 289, which adopted the “justiciability” theory, remained undisturbed.

Dawson J repeated the analysis he put forward in Gardner v Wallace, albeit in summary form, in Commonwealth v Mewett, at 316. In the same case, Gummow and Kirby JJ said (at 340) that the effect of s 5 of the Choice of Law (Limitation Periods) Act 1993 (NSW) (equivalent to s 56 of the Limitation Act (ACT))

“is to render s 5 of the Victorian [Limitation of Actions] Act part of the substantive law which, consistently with McKain, would be applied in a New South Wales court as part of the lex causae in a tort action for a wrong committed in Victoria.”

This language is consistent with the choice of law theory expressed by Brennan J in Breavington. But it is not clear that Gummow and Kirby JJ, by this comment, intended to express an opinion on the juridical nature of the rule stated in McKain.  Their Honours made no express reference to Dawson J’s views on the subject.

The “justiciability” approach of Dawson J in Gardner v Wallace and the “choice of law” approach of Brennan J in Breavington do not necessarily exhaust the theoretical possibilities as to the juridical nature of the modified rule in Phillips v Eyre, expounded in McKain: see Davies, above, at 72. However, if those approaches are regarded as the only alternatives, the choice between them may have considerable significance. The point can be illustrated by the present case.

As I have noted, the appellant’s motion did not identify the legislation under which the extension of time was sought. However, it seems that the parties approached the application on the basis that the primary Judge was being asked to exercise the powers conferred by s 15 D(2) of the Workers Compensation Act and to make an order under that provision. Section 151D(2) reads as follows:

“A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”

Not surprisingly, the primary Judge followed the approach suggested by the parties.  He observed that

“the substantive law of New South Wales (the lex loci delicti),… is to ‘govern the plaintiff’s claim’ (Breavington v Goldman (1988) 169 CLR 41)”.

His Honour concluded that it was not just that an extension of time should be granted to the appellant.  After reaching this conclusion he added the following:

“I should add in conclusion that no point was taken that the term ‘court’ as it is used in s 151D of the NSW Workers Compensation Act is a court in New South Wales and that the limitation law of New South Wales as it applies to a person entitled to worker’s compensation under the NSW Workers Compensation Act does not permit an application for extension of time to sue an employer to be brought in a court outside New South Wales.”

This comment confirms that his Honour understood that he was being asked to exercise the power conferred by s 151D(2) of the Workers Compensation Act to extend time and that he would have made an order to that effect had he been persuaded on discretionary grounds that it was an appropriate case for an extension of time.

The application to the primary Judge and the appeal were both conducted on the assumption that the only limitation provision requiring consideration was s 151D(2) of the Workers Compensation Act. During the argument on the appeal brief reference was made to Gardner v Wallace.  When asked whether any challenge was being made to the correctness of that decision, Mr Williams QC, who appeared with Mr Mossop for the appellant, said that no such challenge was being made and that he accepted that the decision was correct. Nonetheless, the parties did not direct attention to whether it was necessary to consider not merely the provisions of s 151D(2) of the Workers Compensation Act, but also the similar, but not identical, terms of s 36(2) and (3) of the Limitation Act (ACT). Nor did they consider whether the correct procedure in a case such as the present was for the plaintiff to apply in the ACT for an order extending time pursuant to the powers conferred by s 151D(2) of the Workers Compensation Act.

If the justiciability approach adopted and explained in Gardner v Wallace is correct, in a case such as the present the plaintiff is entitled to sue in the ACT for a wrong committed in NSW only if the conditions laid down in McKain have been satisfied. According to Dawson J, it is only for the purpose of determining whether the second of those conditions is satisfied that the substantive law of NSW (including, by virtue of s 56 of the Limitation Act (ACT), a limitation law of NSW) is imported into the ACT.  The lex fori, including the relevant provisions of the Limitation Act (ACT), continue to govern the appellant’s claim once it is established that the conditions stated in McKain have been satisfied.  Gardner v Wallace suggests that the effect of s 56 of the Limitation Act (ACT) is exhausted when an ACT court determines that the second condition stated in McKain is (or is not) satisfied.

It follows that, even if the McKain conditions are satisfied, it still is necessary for a plaintiff in the position of the appellant to obtain an extension of time under s 36(2) of the Limitation Act (ACT): see Samulski v Swinbourn (1991) 23 MVR 377 (S Ct NSW/James J). The criteria for granting an extension of time under s 36(2) of the Limitation Act (ACT) may well be substantially the same as those governing an application under s 151D(2) of the Workers Compensation Act, even though s 151D contains no equivalent to the specific criteria listed in s 36(3) of the Limitation Act (ACT).  (This was suggested in McIntosh v South Meats Pty Ltd [1997] Aust Torts Rep 81-424 (ACT S Ct/Higgins J)). Nonetheless, this does not necessarily mean that an ACT court, when it considers how the discretion conferred by s 151D(2) of the Workers Compensation Act would or should be exercised, is undertaking precisely the same task as it performs when considering, pursuant to s 36(2) of the Limitation Act (ACT), whether it should grant an extension under ACT law of the limitation period. Whether the ACT court is undertaking the same task depends, in part, on the correct construction of s 57

of the Limitation Act (ACT).

The Construction of Limitation Act (ACT), s 57
In the present case, the primary Judge exercised the discretion conferred by s 151D(2) of the Workers Compensation Act adversely to the appellant, in part, because the law of New South Wales did not allow the appellant to claim damages for non-economic loss and he had an alternative remedy under NSW law for economic loss.  His Honour said this:

“The plaintiff, in my view, can be in no stronger position by issuing a writ in the ACT and then seeking an extension of time to the date of the issue of the writ in order to avoid the effect of the law of New South Wales as the lex loci delicti.  This Court must exercise the discretion to extend the statutory bar as it would be exercised in a comparable case by a New South Wales court and there is no evidence that he is entitled to non-economic loss damages in a New South Wales court for the injury he sues on.  In respect of damages for economic loss, he still has equivalent rights to workers’ compensation in New South Wales.  He has commenced proceedings in the Compensation Court and he ought to continue them.  He has not demonstrated to my satisfaction that justice requires that the limitation period laid down by the New South Wales law be extended so that he can pursue his claim to have damages assessed under the law of the Australian Capital Territory.  It is not just that the extension be granted.”

It is implicit in this passage that an ACT court, in exercising the discretion conferred by s 151D(2) of the Workers Compensation Act, can and should take account of restrictions imposed by NSW law on the award of damages to a plaintiff relying on s 151D(2). This gives rise to a question of construction. In a case such as the present, does s 57 of the Limitation Act (ACT) require an ACT court, when it “exercises a discretion conferred under” s 151D(2) of the Workers Compensation Act, to take into account restrictions on the availability of damages imposed by NSW law, including other provisions of the Workers Compensation Act? Or does s 57 require the ACT court to apply the general principles formulated by NSW courts for the exercise of the discretion conferred by s 151D(2), but to do so by reference to the more generous common law rules governing the award and assessment of damages prevailing in the ACT?

The appellant submitted that the effect of s 57 of the Limitation Act (ACT) is to require courts of the ACT to follow the jurisprudence of the lex loci delicti when exercising a discretion conferred by a limitations law of the lex loci. Mr Williams argued that s 57 is designed to prevent “jurisprudence shopping” in relation to the same statutory provisions. He contended that s 57 does not require an ACT court to exercise its discretion on the “wholly artificial basis” that the procedural law (including the law of governing assessment of damages) of NSW applies to the claim. The discretion is to be exercised in accordance with the jurisprudence of NSW, as applied to a claim brought in the ACT.

The appellant’s argument assumed that the restrictions on compensation for non-economic loss, imposed by Part 3, Div 4 of the Workers Compensation Act (NSW), are procedural, rather than substantive in character. As recent authorities demonstrate, the distinction is not always easy to apply: see Stevens v Head; Wilson v Nattruss (1994) 19 MVR 23 (S Ct Vic/App Div), Thompson v Hill; Rahim v Crawther (1996) 25 MVR 190 (S Ct WA/FC). Since the respondent did not dispute the appellant’s characterisation of the relevant provisions, I am prepared to accept the assumption underlying the appellant’s argument.

I think it helpful to commence by asking why the limitation provisions of the Workers Compensation Act are relevant to the present case.  I do so on the basis, expressly accepted by the appellant, that Gardner v Wallace correctly explains the operation of s 56 of the Limitation Act (ACT). That involves the proposition that s 56, which is closely related to s 57, proceeds on a misconception as to the effect of McKain and that the “natural construction of the section” might have to be modified to take account of the true effect of McKain and the purpose underlying the legislation.

The appellant cannot succeed in his claim in the ACT unless he satisfies each element of the test stated in McKain.  The second limb of that test requires him to show that, by the law of NSW (as the lex loci delicti) the circumstances of the occurrence gave rise to a civil liability of the kind which the appellant claims to enforce.  He must also show that the civil liability is a continuing one.  According to Gardner v Wallace, the substantive law of the locus delicti is imported into the forum only for the purpose of determining whether the second limb of McKain is satisfied. But for s 56 of the Limitation Act (ACT), the limitation provisions of the Workers Compensation Act, being procedural, would not bear on this question.  However, the

effect of s 56 is to require an ACT court to regard the limitation provisions of the WorkersCompensation Act as substantive, for the purpose of determining whether the law of NSW recognises the circumstances of the occurrence as giving rise to a civil liability of the kind the appellant claims to enforce in the ACT. The limitation provisions of NSW law include the discretionary power conferred by s 151D(2) of the Workers Compensation Act.  As far as the ACT court is concerned, that discretionary power is part of the substantive law of NSW, imported into the forum only for the purpose of determining whether the second limb of McKain is satisfied. Section 57 directs the ACT court to exercise that discretion, as far as practicable, in the manner in which it is exercised in comparable cases by the courts of NSW.
In exercising the discretion conferred by s 151D(2) of the Workers Compensation Act, in conformity with the direction given in s 57 of the Limitation Act (ACT), the ACT court is considering whether, given the circumstances of the occurrence in NSW, the limitation period should be extended under the law of NSW. In effect, the ACT court is being required to consider what a NSW court would do if asked to extend the limitation period in a case arising out of an occurrence in NSW. The ACT court is not required to consider how a NSW court would exercise its discretion under s 151D(2) of the Workers Compensation Act in a case arising out of an occurrence in NSW, where proceedings have been instituted in the ACT. The ACT court is to exercise its discretion in the manner in which it is exercised in “comparable cases” by the courts of NSW. The “comparable cases” referred to in s 57 of the Limitation Act (ACT), in my opinion, are those in which NSW courts exercise the discretion conferred by s 151D(2) of the Workers Compensation Act in relation to occurrences which have taken place in NSW.  It follows that an ACT court, if it is to exercise its discretion under the NSW law in the manner in which it is exercised in comparable cases by NSW courts, must take into account the factors a NSW court would consider in a case arising out of an occurrence in NSW.

It was not disputed by the appellant that a NSW court, when exercising the discretion conferred by s 151D(2) of the Workers Compensation Act in relation to events occurring in NSW, would take into account whether a plaintiff would be substantially better off if a common law action were available in NSW.  A consideration of this kind goes to whether the plaintiff would suffer hardship if an extension of time were not granted and whether an
extension is likely to prove futile.  In determining whether a plaintiff would be better off, it is relevant to consider whether NSW law imposes restrictions on the quantum of damages that can be recovered by the plaintiff in a common law action.  This is so whether those limitations are described as procedural or substantive for choice of law purposes.  Accordingly, in my view, the primary Judge was correct in taking into account that the appellant could not have claimed compensation for non-economic loss in a common law action in NSW and that he had remedies under the Workers Compensation Act for economic loss equivalent to any common law entitlements. 

I do not agree that this approach results in the plaintiff’s claim in the ACT being assessed on a “wholly artificial basis”, as Mr Williams suggested.  ACT law, as the lex fori, continues to govern the assessment of the appellant’s damages, provided that he can satisfy the conditions restated in McKain.  As I have said, whether the second McKain condition is satisfied is to be addressed from the perspective of a NSW court dealing with an occurrence in NSW.  The ACT court carrying out this task may have to consider any relevant restrictions on damages created by NSW law, even though such limitations might generally be characterised as procedural.

For the reasons explained by Dawson J in Gardner v Wallace, the language of ss 56 and 57 of the Limitation Act is not easy to construe or apply.  The construction I have adopted gives effect to the policy underlying the legislation, namely, minimising the opportunities for forum shopping within a federation.  Of course, many opportunities remain, including those flowing from “procedural” differences among the States and Territories in relation to the assessment of damages in accident cases, provided the plaintiff is able to satisfy the McKain conditions.

I should add two points.  First, there was a suggestion in the appellant’s written submissions that the primary Judge had erred in concluding that the appellant had not shown that he was likely to be able to meet the threshold requirements of the Workers Compensation Act governing recovery of compensation for non-economic loss.  This submission was not developed further.  In my view, it was open to his Honour to reach the conclusion he did.

Secondly, if the justicability approach adopted in Gardner v Wallace is not correct, an ACT
court would be required to apply NSW law as the substantive law governing the appellant’s right to recover a judgment in the ACT in respect of a wrong occurring in NSW. My present view is that, if this were the case, s 57 of the Limitation Act (ACT) would operate in the same manner as it does when an ACT court determines whether the second condition stated in McKain is satisfied.  Given the concession about the correctness of Gardner v Wallace in the present case.  It do not think it necessary to consider this point further.

The Appellant’s First Contention

I agree with Higgins J that, in the face of the evidence from the appellant’s solicitor, it is difficult to sustain the conclusion that the respondent had affirmatively established that the persons responsible for cleaning the shower block where the appellant fell could not be located.  It is unfortunate that the appellant’s representatives waited until the day of the hearing before the primary Judge (31 October 1997) to provide an affidavit giving the name and telephone number, as at 1990, of the cleaner.  Nonetheless, a prospective defendant must place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 547, per Toohey and Gummow JJ. Since there was no evidence that Mr Lakis, the cleaner, was no longer contactable, his Honour’s finding of fact cannot stand.

It follows that his Honour’s conclusion as to how the discretion under s 151D(2) of the Workers Compensation Act would or should have been exercised was attended by an error. In these circumstances, it is appropriate to consider afresh how the discretion would or should have been exercised in accordance with the requirements of s 57 of the Limitation Act (ACT).

Exercise Of Discretion
The Principles

For the reasons I have given, I think that the task confronting the primary Judge in this case was not whether or not to make an order under s 151D(2) of the Workers Compensation Act, but to consider how a NSW court would exercise its discretion under that provision for the purpose of determining whether the second condition laid down in McKain was satisfied in the circumstances of the present case.  Be that as it may, the parties were content to approach the question of discretion by reference to the principles stated in Salido v Nominal Defendant
(1993) 32 NSWLR 524 (CA). Salido concerned an application for an extension of time pursuant to s 52(4) of the Motor Accidents Act 1988 (NSW). Section 52(4) employs language very similar to that of s 151D(2) of the Workers Compensation Act.

In Salido, Gleeson CJ (at 532-533) stated the following “guidelines”:

1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears.  The immediate purpose, as with any limitation period, is to protect defendants against the injustice of state claims; the statute is also aimed at promoting forensic diligence.

1. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

1. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff’s representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

1. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff’s delay will also be material.  The effect, if any, of the delay upon the defendant’s ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

1. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant’s willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material.” (Emphasis added.)

See also Kirby P, at 537-538.

Salido was decided before the High Court’s decision in Brisbane South v Taylor.  In Sydney City Council v Zegarac, NSW CA unreported, 26 February 1998, a case under s 60C(2) of the Limitation Act 1969 (NSW), Mason P observed that Brisbane South v Taylor

“has correctly been viewed by the New South Wales profession as requiring greater stringency in the approach to the exercise of statutory discretions to extend limitation periods than has been evidenced in many cases.”

Mason P also pointed out that there were differences of approach in Brisbane South v Taylor to the discretionary extension of limitation periods.  All members of the High Court agreed that under the legislation considered in that case, an applicant has to satisfy the Court that grounds exist for exercising the discretion in his or her favour (at 547, per Toohey and Gummow JJ; at 551, per McHugh J (with whom Dawson J agreed); at 567-568, per Kirby J.   McHugh J emphasised (at 551-552) that the discretion must be exercised in the context of the rationales for limitation periods.  This includes a recognition that “[p]rejudice may exist without the parties or anyone else realising that it exists”.  Both Dawson and McHugh JJ seem to have accepted that an applicant cannot succeed unless he or she negates significant prejudice (at 544, 555-556).  On the other hand, Toohey and Gaudron JJ said (at 550) that the

“real question is whether the delay has made the chances of a fair trial unlikely”.

Kirby J stressed the need to consider the factual circumstances of each case, including any claimed disadvantage, while recognising that “it will be rare that the passage of time does not cause at least some disadvantage to prospective defendants” (at 566).

Factors Favouring an Extension of Time
Some considerations suggest that the discretion conferred by s 151D(2) of the Workers Compensation Act should or would be exercised in favour of the appellant.  These include the following:

• The incident, which occurred on 3 April 1989, was immediately reported by the appellant to his employer.  Shortly thereafter, the appellant lodged a workers’ compensation claim.

• The respondent reported the injury on 20 April 1989 to its insurer.

• The appellant’s solicitors wrote on 6 June 1989 to the respondent stating that they had been instructed “to investigate the circumstances of [the appellant’s] injury”

• The employer’s insurer obtained medical reports on the appellant’s condition as early as 1 August 1989.  The same doctor reported in August 1992 and another doctor in February 1993.

• At some time in 1990, the appellant’s solicitor obtained a statement from the respondent’s

operations manager, Mr Jones, who had inspected the floor of the amenities block shortly after the incident.  Mr Jones’ signed statement says, inter alia, that he observed a thin film of water on the floor shortly after the incident.

• In December 1990, the appellant’s solicitor conducted a telephone interview with the cleaner of the premise, Mr Lakis.  According to the solicitor’s notes, the cleaner reported that the shower block was always dirty when he arrived and the floors were frequently slippery through water and grease.

• The appellant served a workers compensation claim in May 1995 and his solicitor communicated with the respondent’s insurer thereafter concerning the claim.

• The report prepared by the respondent’s investigators in May 1997 indicated that the ablutions block had not been modified in any substantial way since 1989.

These factors indicate that the respondent cannot say that it will suffer clear and substantial prejudice if an extension of time were to be granted because it has been deprived of the opportunity to obtain contemporaneous information about the incident or the appellant’s response to it.  The various reports, some of which are contemporaneous or nearly so, address the circumstances of the incident and the effect on the appellant.  The evidence, at this stage, suggests that the appellant has a strong prima facie case on liability. 

This does not mean, however, that the respondent would not suffer some prejudice if the period prescribed by s 151D(2) of the Workers Compensation Act, which expired on 26 March 1994, were to be extended until the date proceedings were instituted (13 May 1997).  There appears to be conflicting evidence as to the reason for the appellant’s departure from the job.  The former manager (according to the investigator’s report) recalls that the appellant had left of his own accord, while the appellant’s version of events is likely to be different.  The uncontradicted evidence shows that the available records do not address the reasons for the appellant’s departure.  Mr Jones now has no recollection of the incident or of the subsequent reports, despite having been shown a copy of the Personal Incident Report of 3 April 1989.  The respondent therefore is unlikely to be able to ascertain whether Mr Jones would have wished to supplement or qualify the statement he signed in 1990.  There are also the unquantifiable effects of delay noted in McHugh J’s judgment in Brisbane South v Taylor.

Factors Against an Extension of Time

If prejudice were the only issue to consider, I would conclude that a court exercising the discretion conferred by s 151D(2) of the Workers Compensation Act would do so in favour of the appellant. But there are two powerful countervailing factors. The first is that the appellant has provided no satisfactory explanation for his delay in instituting proceedings. The proceedings were not instituted in the ACT until eight years after the incident and until over three years after expiry of the limitation period set by the Workers Compensation Act. This is so notwithstanding that the appellant had the benefit of legal advice from June 1989 and at regular intervals throughout the period.

According to the appellant’s solicitor, the appellant was advised in late 1990 or early 1991 that he would be best served by pursuing his lump sum entitlement under the Workers Compensation Act, rather than electing to pursue a common law claim in NSW.  That advice was repeated in March 1992, when the appellant informed his solicitor that he was having continuing back problems.  In April 1995, counsel advised that the appellant should pursue a workers compensation claim before giving consideration to a common law claim, particularly having regard to the threshold requirement for common law proceedings for non-economic loss of an injury for which the compensation was not less than 33 per cent of the maximum (Workers Compensation Act, s 151H(1),(2)).  It was not until April 1997 that counsel (whether or not the same counsel was  not made clear) advised that common law proceedings should be instituted in the ACT.

The bases for the successive advices to the appellant were not revealed.  The evidence did not suggest, for example, that the appellant had suffered an unexpected deterioration in his condition between April 1995 (or March 1992) and April 1997.  As Mr Williams conceded, the appellant received legal advice that was based on full information concerning the circumstances of the accident and its consequences.  That advice was not to institute common law proceedings.  It is true that McKain was not decided until December 1991, but this was well over two years prior to the expiry of the limitation period.  The appellant’s solicitor was in regular contact with him during 1992 and had further contact in 1993 and 1994, so that the time of the decision in McKain hardly provides an explanation for the delay.

Mr Williams did not dispute that the diligence, or lack of it, shown by a plaintiff or his or her representatives will ordinarily be a material factor in the exercise of the discretion, as will the extent of the delay and the reason for it. I do not suggest that there was any failure or omission on the part of the appellant’s advisers in the present case. Their advice may have been perfectly sound. It is enough to say that with apparently full knowledge of all relevant circumstances, the appellant’s advice, until July 1997, was not to institute proceedings at common law. Having regard to the length of time between the incident and the institution of the proceedings, I think that this is a factor that would militate strongly against the grant of an extension under s 151D(2) of the Workers Compensation Act.

I have already referred to the second factor suggesting that a court would not consider it appropriate to grant an extension of time to the appellant under s 151D(2) of the Workers Compensation Act. I agree with the primary Judge that the inability of the appellant to claim significant damages for non-economic loss under NSW law and his entitlement under the Workers Compensation Act to compensation for economic loss should be taken into account in considering whether an extension of time would have been granted.  These matters suggest that for a NSW court, dealing with a claim based on an occurrence in NSW, to extend time would be largely futile and that a refusal by such a court to extend time would not cause hardship to the appellant.

As I have explained, the issue confronting the primary Judge was how a court in NSW would exercise the discretion conferred by s 151D(2) of the Workers Compensation Act, in relation to the wrong allegedly done to the appellant in NSW.  Having regard to the factors I have mentioned, in my view, the primary  Judge should have concluded (as in effect he did) that a court in NSW would decline to exercise the discretion in the appellant’s favour.

Conclusion

Although I have not approached the exercise of the discretion conferred by s 151D(2) of the Workers Compensation Act in precisely the same way as the primary Judge, I agree that the appellant has not made out a case for the exercise of that discretion in his favour.  The consequence, on the analysis I have put forward, is the appellant has failed to satisfy the second condition laid down in McKain. That condition must be satisfied if the appellant is to

sue in the ACT in respect of an alleged wrong occurring in NSW.

I have referred to possible difficulties with the form of the proceedings in this case.  In the result, however, the appeal should be dismissed.  I would make the following orders:

1. GRANT leave to appeal.

2. DISMISS the appeal.

3. ORDER the appellant to pay the respondent’s costs.

I conclude by adding my voice to those who have argued for comprehensive legislative reform of this important area of law.

I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville J.

Associate:

Dated:             2 November, 1998

Counsel for the Applicant:	R Williams QC with D Mossop
Solicitor for the Applicant:	Pamela Coward & Associates
Counsel for the Respondent:	G P McNally
Solicitor for the Respondent:	Hunt & Hunt
Date of Hearing:	1 July 1998
Date of Judgment:	2 November, 1998